REAL ID for Sudafed? Call it ‘Mission Creep’

Just five days after the Department of Homeland Security released the final regulations to implement the REAL ID Act, DHS Assistant Secretary for Policy Stewart Baker suggested yet another terrifying use of the controversial ID card: to buy Sudafed. This followed the Department’s official position in the final rules that it has no intention of turning REAL ID into a national ID card, and will limit its required uses to those called for in the law. But Baker’s suggestion is just the sort of mission creep that worries us here at CDT.

In the final regulations, DHS appropriately limited the required use of REAL ID to just three situations: boarding commercial airplanes, entering federal buildings, and entering nuclear power plants. However, Baker suggested that REAL ID could also help combat methamphetamine production: “If you have good IDâ€¦ you make it much harder for the meth labs to function in this country.” Listen to Baker’s speech at the Heritage Foundation.

Baker’s suggestion that pharmacies should require customers to show a REAL ID-compliant driver’s license to purchase over-the-counter cold medicine containing pseudoephedrine pursuant with a 2005 act of Congress could have significant ramifications for citizens of the 17 states opposing the multi-billion dollar REAL ID program, and possibly the 22 additional states with proposed anti-REAL ID legislation. Baker’s latest proposal highlights the ridiculousness of the program: Will residents of non-compliant states not be able to buy Sudafed at their local pharmacies?

It looks like Baker has failed to take into account comments made by DHS Secretary Michael Chertoff at a news conference on Real ID in Washington, DC on January 11, just five days prior to Baker’s statement. Contemplating that residents of non-compliant states will be able to use other documents, such as passports, to get on airplanes, Chertoff said: “The last thing I want to do is punish citizens of a state who would love to have a REAL ID driver’s license and can’t get one because the state has voted to opt out of the program.” But what sort of accommodations will be made for people without REAL IDs who simply want to buy a decongestant?

Baker’s suggested mission creep pushes the REAL ID program farther down the slippery slope toward a true national ID card. But most strikingly, he has totally failed to understand civil libertarians objections to REAL ID, which was depressingly evident in his closing comments: “The last thing I want to talk about, and very briefly, is the civil liberties objections to REAL ID, because I don’t understand them.”

And Baker’s suggestion is only the most recent example of the type of Real ID mission creep CDT has warned against all along. Last year in Congress, bills were proposed that extended REAL ID card use for potential employees when applying for a job S. 1348, and for receiving federal housing benefits H.R. 1427. CDT specifically recommended in comments to DHS in May of 2006 that required uses should be limited to those in the Act itself, but if the list of required uses were to be expanded in the future, DHS should only do so if directed by new legislation, or at minimum by initiating a new rulemaking that is open to public comment.